Sidhu (Migration) - [2019] AATA 4928

Sidhu (Migration) [2019] AATA 4928 (9 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amritpal Singh Sidhu
CASE NUMBER:  1818173
HOME AFFAIRS REFERENCE(S):           BCC2018/1036768
MEMBER:Stephen Witts
DATE:9 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 09 July 2019 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – did not maintain enrolment in registered course for eight months – multiple course enrolments – training providers did not advise of enrolment cancellations – non-payment of fees – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i) if satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(fa) - not a genuine student
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sidhu (Migration)

Details

AGLC: Sidhu (Migration) [2019] AATA 4928
Case: [2019] AATA 4928
Decision Date: 9 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Sidhu, who sought review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute centred on whether Mr. Sidhu was a "genuine student" and whether his visa should be cancelled on that basis.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, specifically whether Mr. Sidhu was a genuine student. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that Mr. Sidhu had not demonstrated he was a genuine student. This conclusion was based on his history of multiple course enrolments, cancellations of enrolment due to non-payment of fees, and a failure to commence certain courses. The Tribunal noted that while Mr. Sidhu expressed a desire to study and work in Australia, he had not shown a compelling need to remain in Australia on a student visa, nor had he demonstrated significant hardship that would warrant non-cancellation. The Tribunal found that Mr. Sidhu was in significant breach of his student visa conditions.

Consequently, the Tribunal affirmed the decision to cancel Mr. Sidhu's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i) if satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist?s.116(1)(fa) - not a genuine student A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. According to the delegate’s decision record provided to the Tribunal by the applicant, the applicant first arrived in Australia on 19 April 2015 as the holder of a Student (subclass 573) visa granted to him on 10 April 2015 valid until 30 August 2018 on the basis of undertaking a number of courses including a Gen English course, a Certificate IV in Accounting, a Diploma of Accounting, and a Bachelor of Business (Accounting). According to the delegate’s decision record the applicant undertook study in Gen English and in his Certificate IV in Accounting in 2015. According to the delegate’s decision record the applicant never commenced his Diploma of Accounting or his Bachelor of Business (Accounting) courses and that these two enrolments were cancelled. The delegate further contended that the applicant then studied a Certificate III in Commercial Cookery in 2016 and 2017. The applicant then commenced a Certificate IV in Commercial Cookery which was cancelled due to non-payment of fees. The delegate further contended that the applicant enrolled in a Diploma of Leadership and Management and a Bachelor of Business which at that time, that is the time of the decision record of 14 June 2018, was due to commence on 27 May 2019 and complete on 16 May 2021.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Stephen WittsMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia When asked by the Tribunal to outline the applicant’s need to remain in Australia on student visas the applicant stated that his future plans would be upset and that his experience working in the restaurant business would be of little use if he could not continue his study here in Australia. He also stated that the value of the work he is undertaking in the restaurant business is greater here than any he could get back in his home country. He then stated that he wanted to complete his studies and make a future in the restaurant business. The Tribunal accepts that the applicant wants to stay here in Australia working in a restaurant business and may even want to continue hospitality studies here but finds that the applicant has not demonstrated a compelling need to remain in Australia on student visas. The applicant could return home to his home country and be with his parents and his sister in India and resume a family life there working in a hospitality or restaurant business and also doing some study in cookery if that would assist him in making a career for himself in this field back in his home country.·the extent of compliance with visa conditions The applicant was granted a Higher Education TU573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in the higher education category. The Tribunal finds that the applicant is significantly in breach of his student visa conditions and as such the Tribunal gives some weight to this in cancelling his visa.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) When asked by the Tribunal to demonstrate a degree of hardship that may be caused by not being able to remain here on student visas the applicant stated that his family had an expectation that he should come to Australia to secure his future and that his parents wanted him to come to Australia. He also stated that he needed to work to pay off his credit card fees. The Tribunal is concerned by this evidence as the applicant could at any time return to his home country, resume his life there with his family, and work in a restaurant or hospitality business with the intention of paying off any money he may owe on his credit cards. The Tribunal finds that the applicant has not demonstrated a degree of hardship that would establish grounds for his visa not to be cancelled.·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control